Dissenting Opinion by
Mr. Justice Bell:In KoolVent Metal Awning Corp. v. Price, 368 Pa. 532, the Court said: “The law in this class of cases is well established; its application to different facts and circumstances is sometimes difficult. Descriptive, geographical and generic words, as well as words of common usage or general belong to the public and are not capable of exclusive appropriation by anyone . . . Even though a word a phrase or mark has acquired a special or secondary meaning [and there was no averment by complainant that its name had acquired a special or secondary meaning], the right of protection does not extend a monopoly to every word in the name, but the protection will be afforded only against names or marks which are deceptively similar thereto and consequently *108are likely to confuse the public: Quaker State Oil v. Steinberg, 325 Pa. 273.”
No one can possibly acquire an exclusive right, appropriation, trade-mark or trade name in or to the use of the word “Dutch”, especially in Pennsylvania Dutch country, nor, I believe, to the figure of a Dutch windmill, or even a Dutch girl.
The similarity or dissimilarity of the names is the most important factor or test in determining the basic issue of violation of a trade name. An example will make this strikingly clear. If the Washington “Senators” filed a bill to enjoin the New York “Yankees” from using that name since it would likely mislead, confuse and deceive baseball fans, because both teams play baseball; they use the same baseballs and the same ball parks; their gloves and bats are of the same design, color and size; they have the same number of players; they play under the same rules and at times under the same lights; and they have the same umpires. In spite of all these similarities, any judge could decide from the name alone — without the aid of a jury, and without watching the teams play — that the buying public would not be misled or deceived into mistaking the Yankees for the Senator's, or even vice versa.
The name, “Miracle Dutch Treat,” is so very dissimilar to “Dutch Pantry, Inc.”, as to enable the Court to say that it is clearly not deceptively similar to “Dutch Pantry, Inc.”, and it certainly is not likely to confuse or deceive the eating public. In other words, even a stranger in Pennsylvania Dutch country would instantly know — without the aid of a jury or even a judge — 'that a “Pantry” is very different from a “Miraacle Treat.”
Por these reasons I would affirm the judgment of the lower court in Dutch Pantry, Inc. v. Miracle Dutch Treat.